IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MICHAEL D. SNOKE,

Plaintiff,

 Case No.: 2:10-cv-01178

vs. JUDGE GEORGE C. SMITH

 Magistrate Judge Deavers

MICHAEL J. ASTRUE, 

COMMISSIONER OF SOCIAL SECURITY,

Defendant. 

ORDER

 Plaintiff, Michael D. Snoke, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3)

for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying

his application for social security disability insurance benefits. This matter is before the Court for

consideration of the February 22, 2012 Report and Recommendation of the United States

Magistrate Judge (ECF No. 13), Plaintiff’s Objections to the Report and Recommendation (ECF

No. 15), and the Commissioner’s Response to Plaintiff’s Objections (ECF No. 16). For the

reasons that follow, Plaintiff’s Objections are OVERRULED and the Report and

Recommendation is ADOPTED. Accordingly, the Commissioner’s decision is AFFIRMED. 

I.

If a party objects within the allotted time to a report and recommendation, the Court “shall

make a de novo determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P.

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72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).

The Court’s review “is limited to determining whether the Commissioner’s decision ‘is

supported by substantial evidence and was made pursuant to proper legal standards.’” Ealy v.

Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v. Comm’r of Soc. Sec.,

486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) (“The findings of the

Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be

conclusive . . . .”). Put another way, a decision supported by substantial evidence is not subject to

reversal, even if the reviewing court might arrive at a different conclusion. Mullen v. Bowen, 800

F.2d 535, 545 (6th Cir. 1986). “Substantial evidence exists when ‘a reasonable mind could accept

the evidence as adequate to support a conclusion [and] . . . presupposes that there is a zone of

choice within which the decision-makers can go either way, without interference by the courts.’” 

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (internal; citation omitted). 

Even if supported by substantial evidence, however, “‘a decision of the Commissioner will not be

upheld where the [Commissioner or agency] fails to follow its own regulations and where that

error prejudices a claimant on the merits or deprives the claimant of a substantial right.’” Rabbers

v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc.

Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

II. 

The Court has conducted a de novo review and agrees with the reasoning and analysis of

the Magistrate Judge. In his Objections, Plaintiff argues as he did in his Statement of Errors that

he met the requirements of Listing 12.05C for mental retardation. Plaintiff points out that he had

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been found disabled under Listing 112.05D at age nine and that the language of 112.05D is the

same as Listing 12.05C. He asserts that “the same deficits of adaptive functioning with which he

[met] Listing 112.05D since age 9 continued after age 18, and met Listing 12.05C. (Pl.’s

Objections 1, ECF No. 15.) 

The administrative law judge (“ALJ”) concluded that Plaintiff’s mental impairments did

not satisfy the Listing because the evidence did not support the requisite adaptive deficits. (R. at

21.) He found instead that Plaintiff’s “actual level of adaptive functioning is inconsistent with

mental retardation and the requirements of Listing 12.05.” (R. at 20.) In reaching this

conclusion, the ALJ acknowledged that Plaintiff had some mild limitations and activities of daily

living and no more than a moderate limitation in social functioning and concentration, persistence,

and pace. (Id.) The ALJ incorporated these limitations into Plaintiff’s residual functional capacity

(“RFC”), limiting Plaintiff to simple “routine non-fast paced tasks with infrequent changes that

can be explained and that do not require functional literacy or more than occasional intermittent

interaction with others.” (Id.) 

Plaintiff argues that these limitations demonstrate that he met Listing 12.05’s adaptiveskills limitations requirement. Specifically, he argues that his IQ scores, his school records, and

the ALJ’s recognition that Plaintiff was limited to jobs not requiring functional literacy

demonstrates that he had the requisite deficits in functional academic skills. Likewise, he argues

that the ALJ’s recognition that Plaintiff was limited to simple, routine non-fast paced tasks with

infrequent changes that can be explained demonstrates that he had the requisite deficits in work

functioning. 

In his Objections, Plaintiff incorrectly suggests that the Magistrate Judge upheld the ALJ’s

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decision because she concluded that Listing 12.05C required marked limitations to qualify as

deficits in adaptive functioning. (See Pl’s Objections 5, ECF No. 15. (“nowhere did [Listing

12.05C] require Marked impairment”).) Instead, the Magistrate Judge relied on case law to

conclude that the limitations must be “relatively significant” to satisfy the listing. (Report and

Rec. 17, ECF No. 13.) She analyzed the issue as follows: 

After consideration of the record as a whole, the ALJ acknowledged that

Plaintiff had some mild limitations in activities of daily living and no more than a

moderate limitation in social functioning and concentration, persistence, and pace.

(R. at 20.) He noted that Plaintiff’s “biggest problem appears to be in the area of

concentration, persistence, and pace,” but that “significantly, he has demonstrated

sufficient concentration, persistence, and pace to perform the activity set forth

above.” (Id.) The ALJ therefore concluded that these limitations were not severe

enough to satisfy Listing 12.05. 

Plaintiff disagrees with the ALJ’s conclusion. He asserts that the ALJ’s

findings establish that he suffered from the required deficits in adaptive

functioning, but that the ALJ failed to recognize that the limitations he included in

his RFC amounted to “deficits in adaptive functioning.” (Pl’s Stmt. of Errors 10,

ECF No. 9.) The ALJ’s RFC limited Plaintiff to simple “routine non-fast paced

tasks with infrequent changes that can be explained and that do not require

functional literacy or more than occasional intermittent interaction with others.” 

(R. at 21.) Thus, the question for the Court is whether the foregoing limitations

are of such severity as to require the conclusion that Plaintiff suffered from the

requisite deficit. 

The undersigned determines that the foregoing limitations do not require

such a conclusion. The plain language of Listing 12.05 does not identify how

severe limitations must be to qualify as “deficits in adaptive functioning.” 

Pendleton v. Comm’r of Soc. Sec., No. 1:10–cv–650, 2011 WL 7070519, at *11

(S.D. Ohio Dec. 23, 2011). Nevertheless, case law from the Sixth Circuit and

other federal courts suggests that a claimant must have relatively significant

deficits to satisfy the Listing. See, e.g., West, 240 F. App’x at 698–99 (6th Cir.

2007) (suggesting that a claimant’s ability to understand and retain simple

instructions; maintain concentration and attention for basic tasks; interact

effectively with co-workers; and deal with work stress all supported a finding of no

deficiencies in adaptive functioning); Harris v. Comm’r of Soc. Sec., 330 F. App’x

813, 815–16 (11th Cir. 2009) (claimant who did well in special education classes;

was able to perform several jobs; and who had mild limitations in daily living

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activities, social functioning, and concentration did not have the type of deficits in

adaptive functioning required for Listing 12.05C); McMillan v. Comm’r of Soc.

Sec., No. 1:10–cv–00308, 2012 WL 90264, at *6 (W.D. Mich Jan. 11, 2012)

(holding that insignificant or trivial deficits were not sufficient to satisfy Listing

12.05 and that ALJ’s finding of moderate restrictions in daily living did not require

a finding of deficits in adaptive functioning). Here, the evidence the ALJ

considered and relied upon constitutes substantial evidence supporting his

conclusion that Plaintiff does not have deficits in adaptive functioning. This

evidence includes records from Plaintiff’s school, his treating physician, his

mother’s reports, and a consultive exam, as well as Plaintiff’s own testimony.

(Id. at 16–18.) Beyond his incorrect suggestion that the Magistrate Judge concluded that Listing

12.05C required marked limitations, Plaintiff offers no authority undermining the Magistrate

Judge’s determination that the limitations must be “relatively significant.” 

The Court agrees with the Magistrate Judge that the RFC the ALJ set forth for Plaintiff

does not compel the conclusion that Plaintiff met Listing 12.05C. Rather, substantial evidence

supports the ALJ’s conclusion that Plaintiff’s adaptive skills are not deficient. “The adaptive skills

prong [of Listing 12.05C] evaluates a claimant’s effectiveness in areas such as social skills,

communications skills, and daily-living skills.” Hayes v. Comm’r Soc. Sec., 357 F. App’x 672,

677 (6th Cir. 2009) (citing Heller v. Doe, 509 U.S. 312, 329 (1993).) Although Listing 12.05

does not define “adaptive functioning,” another portion of the Listings defines “adaptive

activities” as “cleaning, shopping, cooking, taking public transportation, paying bills, maintaining

a residence, caring appropriately for your grooming and hygiene, using telephones and directories,

and using a post office.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(C)(1). Furthermore, in

considering Listing 12.05, the Sixth Circuit has noted that “[t]he American Psychiatric

Association defines adaptive-skills limitations as ‘[c]oncurrent deficits or impairments . . . in at

least two of the following areas: communication, self-care, home living, social/interpersonal skills,

use of community resources, self-direction, functional academic skills, work, leisure, health, and

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safety.’” Id. (quoting DSM-IV-TR at 49).

 In reaching this conclusion, the Court notes that it agrees with Plaintiff that the record

establishes impairments in his functional academic skills. He was assessed with average nonverbal

abilities and tested in the “low average range” for his basic reading, reading comprehension, mathcalculation abilities, math-reasoning skills, and ability to write short sentences. (See R. at 68, 78,

93). Plaintiff’s school records indicate, however, that Plaintiff attended special education classes

for two-thirds of the school day, struggled academically, and that he tested in the “extremely low

range for spelling.” (See R. at 68, 79, 81). 

A reasonable mind could conclude, however, that the record provides adequate support

for the ALJ’s conclusion that Plaintiff did not have the requisite deficits in other adaptivefunctioning areas. The record shows that Plaintiff performed farm work without difficulty;

performed household chores, including laundry, mowing grass, preparing simple meals, and

washing dishes; played video games; visited with friends and family; went bowling with friends

weekly; went to the video arcade and to the movies; watched several hours of television each day;

took care of his daily grooming and hygiene; shopped alone; completed his homework; obtained

his temporary driving permit; went fishing, camping, and hunting; played board games; ran track

in high school and was active in Future Farmers of America; and routinely read the sports section

of the newspaper.1

 Plaintiff associated well with his family, peers, and school staff. His teacher

reported that he has “a great sense of humor” and “generally displays a good attitude.” (R. at 80.) 

1

The ALJ noted that Plaintiff’s “biggest problem appears to be in the area of

concentration, persistence, and pace,” but noted that “significantly, [Plaintiff] has demonstrated

sufficient concentration, persistence, and pace” to perform activity he found to be inconsistent

with adaptive functioning deficits. 

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Dr. Miller noted that Plaintiff was cooperative, friendly, and made good eye contact and that his

speech was intelligible and goal-oriented. He assigned him a Global Assessment of Functioning

score of 65, which is indicative of some mild symptoms. Dr. Miller opined that Plaintiff had

moderate to marked impairment in maintaining attention span and concentration, but noted that

Plaintiff was not taking any medication for his attention deficit disorder (“ADD”). Plaintiff’s

treating physician, Dr. Gibson, opined that he would benefit from taking the medication that she

had prescribed to treat his ADD, but that Plaintiff had not returned for treatment after she had

informed Plaintiff’s mother that she would not continue to prescribe the medication until she and

Plaintiff could demonstrate that they would not continue misusing the controlled medications. 

Drs. Meyer and Finnerty reviewed all of Plaintiff’s records and concluded that he did not meet or

medically equal any listing. 

Because the Court concludes that the record evidence provides adequate support for the

ALJ’s conclusion that Plaintiff’s “actual level of adaptive functioning is inconsistent with mental

retardation and the requirements of Listing 12.05C,” the Court finds Plaintiff’s objections to be

without merit. See Hayes, 357 F. App’x at 677 (finding that Plaintiff “would not be able to

establish” the adaptive skills prong because her daily living skills–which included caring for herself

and her husband; cooking meals, doing laundry, shopping; managing finances; and taking public

transportation—show that plaintiff’s adaptive skills are not deficient). See also Report and

Recommendation 17–18, ECF No. 13 (reviewing authority from the United States Court of

Appeals for the Sixth Circuit and other federal courts considering whether the plaintiff had

satisfied the adaptive skills prong of Listing 12.05C); but see Brown v. Sec. of HHS, 948 F.2d

268, 270 (6th Cir. 1991) (finding that use of public transit, making change at grocery store,

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obtaining a driver’s licence, visiting friends, doing laundry and cleaning room is not necessarily

“inconsistent with a valid test I.Q. of 68”).

III. 

For the reasons set forth above, Plaintiff’s Objections (ECF No. 13) are OVERRULED

and the Report and Recommendation (ECF No. 15) is ADOPTED. Accordingly, the

Commissioner’s decision is AFFIRMED. 

IT IS SO ORDERED.

/s/ George C. Smith 

 GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

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